Dissolved company summoned: inadmissible
Turbo liquidation (or expedited liquidation) remains a hot issue for creditors who still have something to claim after dissolution of their creditor. In its judgment of 21 January 2025(ECLI:NL:GHARL:2025:293), the Arnhem-Leeuwarden Court of Appeal ruled that if a B.V., dissolved after turbo liquidation, is summoned, the claimant’s case is inadmissible. First, if there are indications of assets, a request must be made to reopen the liquidation proceedings on the basis of Section 2:23c(1) of the Dutch Civil Code (DCC).
The essence of the case
The essence of the case is as follows. A private limited company, the debtor, has a debt to a creditor. The debtor is dissolved by means of a turbo liquidation. The creditor summons the custodian of the debtor’s books and records and demands payment of the debt. The custodian claims in an incidental proceeding that the creditor should be declared inadmissible. The subdistrict court declares the creditor inadmissible. The creditor appeals this decision, as discussed below.
Legal framework
For the purposes of this blog, the following articles of law are relevant.
Art. 2:19(4) DCC (freely translated):
“If at the time of its dissolution the legal entity no longer has any assets, it shall then cease to exist. In such case, the board or, where Article 19a applies, the Chamber of Commerce, shall report this to the registers where the legal entity is registered.“
Art. 2:19(5) DCC (freely translated):
“The legal entity shall continue to exist after dissolution to the extent necessary for the liquidation of its assets. In documents and notices issuing from it, the following must be added to its name: in liquidation.“
Art. 2:23c(1) DCC (freely translated):
“If, after the time when the legal entity ceased to exist, a creditor or person entitled to the balance arises or the existence of a benefit appears, the court may, at the request of an interested party, reopen the liquidation and, if necessary, appoint a liquidator. In that case, the legal entity shall revive, but only for the purpose of settling the reopened liquidation. The liquidator shall be authorised to recover from each of the beneficiaries what they have received in excess from the surplus.“
Judgment of the court of appeal
The court of appeal ruled as follows (freely translated):
“3.3. [The creditor] questions the absence of assets at the time of the dissolution, but that does not make [the debtor] to be deemed (still) to exist in these proceedings. The present proceedings commenced after the dissolution of [the debtor], and in this respect differ from the case law cited by [the creditor].1 There is also no question of a bankruptcy petition.2 While a dissolved legal entity may be ‘revived’ for the purpose of settling a (reopened) liquidation, the court of appeal is of the opinion with the district court that [the creditor] should have followed the procedure of Article 2:23c (1) of the Civil Code to that end. Application thereof may also be at issue if initially no liquidation took place because no assets were known when the legal entity was dissolved. (…)
3.6. In conclusion, the appeal does not succeed.“
Like Mr Van Thiel, who wrote a note on this judgment in the JOR, I believe that some comments can be made on this judgment. I believe that it follows from Section 2:19(5) DCC that, if there are assets, the company has continued to exist for the purpose of liquidation. In that case, the registration with the Chamber of Commerce that the company has ceased to exist is a mistake in the register and does not correspond to the legal reality that the company still exists. Previous case law, including that of the Supreme Court (HR 27 January 1995, ECLI:NL:HR:1995:ZC1631), does also assume that the court, even outside proceedings in accordance with Article 2:23c(1) DCC, can rule on the question of whether there are still assets.
The argument for the court’s ruling is that legal certainty is served by clarity about whether or not a legal entity still exists after dissolution.
The consequence of the line as followed in this ruling is that in the case of regular proceedings (non-bankruptcy proceedings), the reopening procedure in accordance with Art. 2:23c (1) DCC must first be followed before substantive proceedings can be initiated against the dissolved debtor.
What does this mean for practice?
This ruling has practical implications. It becomes less easy/more complicated to recover a claim against an already turbo liquidated legal entity. The question is whether this is desirable, also in view of critical comments made in practice and by the legislator on turbo liquidation. For directors of a legal entity to be turbo liquidated, there may be one less risk; the legal entity ceases to exist (even after an unjustified) turbo liquidation, as a result of which the obligations applicable to directors of existing legal entities also end. Consider, for example, the filing obligation.
Wieringa Advocaten
Do you have questions about turbo liquidation, reopening liquidation or debt collection? Contact the Corporate Law team at Wieringa Lawyers. We will be happy to assist you!